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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-05-12 Daily Xml
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STATUTES AMENDMENT (SURROGACY) AMENDMENT BILL

Introduction and First Reading

The Hon. J.S.L. DAWKINS (17:03): Obtained leave and introduced a bill for an act to amend the Statutes Amendment (Surrogacy) Act 2009. Read a first time.

Second Reading

The Hon. J.S.L. DAWKINS (17:04): I move:

That this bill be now read a second time.

It has come to my attention that there is a need to amend the Statutes Amendment (Surrogacy) Act 2009. That legislation passed through the Legislative Council on the voices on 18 June 2008 and the House of Assembly on 19 November 2009 by 31 votes to seven.

The act not only legalises altruistic gestational surrogacy in South Australia but also allows for future surrogate parents to apply to the Youth Court to have their names listed on their child's birth certificate. This seemed to be an anomaly with existing interstate surrogacy schemes. The act's transitional provisions give parents who are already raising a child from a non-commercial surrogacy arrangement (that is, prior to the passing of the act) the ability also to apply to the Youth Court to have their details added to their child's birth certificate. It is a retrospective measure.

At the time of drafting the bill in 2006, the transitional provision was specifically aimed at allowing the constituents who brought this issue to my attention, Clive and Kerry Faggotter, and other parents of surrogate children the opportunity to be officially listed as parents on their child's birth certificate. Of course, that was to avoid the rather ludicrous situation where people have had to adopt their own child in order to do that. Clause 1(4) of the transitional provisions currently provides:

An application cannot be made under this clause if a child has been born as a result of the relevant pregnancy and the child is more than 5 years old on the day on which this clause comes into operation.

Due to the delay in government members in the lower house allowing this private member's bill to be debated (and I remind members that my original bill was introduced in June 2006), there was an unintended consequence in that Mr and Mrs Faggotter's son, Ethan, had already turned five; thus they are unable to apply to the Youth Court to correct the birth certificate anomaly.

The Faggotters' case is well known to us because Mrs Faggotter, particularly, has championed this cause very publicly. She has appeared before a standing committee of the parliament and explained the problems, as she said, with her insides. Not everyone is keen to do that. There are other people in the community who are far more private about these matters and you certainly do not blame them for that. Therefore, we do not know how many others are in the same position as Mr and Mrs Faggotter and young Ethan.

The amendment will increase the age limit from five years to 10 to afford the Faggotters and other similarly affected couples the opportunity to avoid this situation of having to adopt their own child. This oversight was brought to my attention shortly after the bill's successful passage through the House of Assembly.

On 27 November 2009, I wrote to the health minister (Hon. John Hill) requesting his support for an amendment to be debated with the government's support, and I did that on the basis that the Hon. Mr Hill had handled the legislation in the lower house for the government, even though Labor members did have a conscience vote, as did the Liberal Party, on this matter. Minister Hill referred my correspondence to the former attorney-general (Hon. Michael Atkinson) on 24 December 2009. In turn, I wrote to then attorney-general Atkinson directly seeking his concurrence for an amendment to the act.

Considering it took me 3½ years to get the bill through the parliament as a private member, I was keen that the government might sponsor this and therefore make it a much quicker process. As I had not heard from the Hon. Mr Atkinson, on 15 February I issued a media release criticising him for his lack of response to this issue. After the election, when it was announced that the Hon. Mr Rau was to become the new Attorney-General, I subsequently wrote to him on this matter. On 19 April, I received a response from Attorney-General Rau. In part, his response advised:

As you have noted, a change to the age limitation in the Act would require further legislation. I do not propose to introduce any further legislation now.

However, the Attorney-General's correspondence does state:

I am advised SCAG [Standing Committee of Attorneys-General] has adopted the principle that the model legislation should allow an order to be granted to parents already raising a child born before the commencement of the legislation through a non-commercial surrogacy arrangement made before the child's conception up to the time the child turns 18, as long as all the parties agree and the order is in the child's best interests.

The bill which I have had drafted is not as lenient as the proposed SCAG model legislation which is currently being drafted. The Attorney-General has given no commitment to implementing the SCAG model legislation in South Australia or adopting this aspect in any future legislation.

In asking the Legislative Council to pass this bill, I hasten to add that the government has been advising me since 2006 that SCAG was considering surrogacy legislation and that the government would act following SCAG's recommendation. To date, I have not seen any considerable action on this issue from SCAG which would justify my waiting for the government to act on this issue. Certainly, the new Attorney-General has referred to the work of SCAG and I know that some work has been done on the model legislation, but, if I can be flippant, it worries me that Ethan Faggotter might be 18 before the SCAG legislation gets to this parliament. Certainly I would hope that is not the case, but the quick passage of this legislation through this council, and hopefully through the House of Assembly, will ensure that this bill is passed before the 2009 act comes into effect in November this year.

I remind members who were here at the time and new members that that 12 month delay was not of my design but one of a number of amendments which were recommended by the Department of Health and moved by the Minister for Health in another place and which I accepted. The act does not come into effect until November this year, and so in passing this bill in a reasonably speedy manner, it should be able to be inserted into the act before it comes into effect. I seek members' support for this measure. I am sorry that we had to come back with it so soon, but, in my view, it needs to be inserted into the new act. I would hope that, within the next few weeks, members will have an opportunity to make a contribution and then I will call for a vote on the matter so that we can forward it to the House of Assembly.

Debate adjourned on motion of Hon. J.M. Gazzola.

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